Council risks litigation after latest housing vote

Council risks litigation after latest housing vote
No council member expressed confidence that either the pre-certified plan or the revised one would pass in November. Courtesy photo

ENCINITAS — With a stunning 3-2 vote on June 20 to remove four sites from its high-density housing list, the Encinitas City Council cast itself into deeper legal uncertainty. The motion came just before two in the morning, after nearly eight hours of presentations, public comment and deliberation.

Fearing that the existing state-sanctioned plan would not pass muster with voters, the council knowingly approved a revised plan that’s a legal Hail Mary — a long-shot pass thrown in desperation as the clock ticks down. Mayor Catherine Blakespear and Councilwoman Tasha Boerner Horvath voted against the motion.

Dropping sites puts Encinitas’ affordable-housing unit count below the 1,600 strongly advised by both California Department of Housing and Community Development and the city’s outside legal counsel. The site removals also result in a violation of a housing law that mandates that 50 percent of the sites selected for development be vacant. It is possible that Housing and Community Development will now withdraw its certification of the plan.

Prior to the June 20 meeting, Housing and Community Development had given the council a much sought-after letter pre-certifying the Encinitas Housing Element as being legally compliant and feasible. Achieving pre-certification was the result of about 18 months of effort that saw multiple revisions, site-list changes and attempts to comply with the passage of new and more stringent housing-development laws. And those efforts came after a failed ballot measure in 2016, several lawsuits and a lack of compliance dating back many years.

A Housing Element is like a master plan for development that demonstrates how a jurisdiction will provide housing for all income levels, classified as very low, low, moderate and above moderate. The state uses the Housing Element as a means for ensuring that all cities are doing their part to address the housing shortage facing California, which some officials have deemed a crisis. Encinitas is the only city in San Diego County that does not currently possess a certified, active Housing Element.

While it was unclear how the Housing and Community Development-approved plan would have fared at the ballot, the city would have possessed a legally valid and enforceable plan and could have shown the court, where it still faces multiple lawsuits and a hearing in August, that it had conducted itself in good faith.

Boerner Horvath addressed her fellow council members, saying, “You’re taking risks with taxpayer money by challenging what the definition of vacant is … arguing against the buffer … and not meeting the 50-percent vacant requirement.”

Councilman Tony Kranz said, “While I don’t relish picking a fight with HCD [Housing and Community Development], our obligation to the community is paramount.”

Removing the controversial sites of Rancho Santa Fe East and the former Frog’s Gym parking lot decreased the number of affordable-housing units to 1,449. Two of the removed sites, South El Camino Real and DeWitt, did not count toward the required amount of affordable housing due to what Housing and Community Development perceived as constraints to development.

The Rancho Santa Fe East and Frog’s Gym sites were unpopular with residents living nearby and elicited numerous complaints, public comments and, for the Rancho Santa Fe East one in Olivenhain, a petition signed by 1,100 people.

Stephen Lloyd from Olivenhain told council that as he gathered petition signatures, he heard many people ask, “Why can’t they just leave us alone?” Lloyd raised his voice and elaborated, “Leaving us alone means not dumping a massive apartment building and a massive number of trips per day … on us.”

While the entire council expressed concerns about getting a measure passed by voters, members disagreed on the path “to yes.” No council member expressed confidence that either the pre-certified plan or the revised one would pass in November. Encinitas’ Proposition A requires that the people vote on high-density housing rather than giving the council the authority to implement the plans it sees fit.

More than 90 people filled out speaker slips, but some left before it was their turn to speak. Residents expressed dismay on June 20 over the idea of building high-density housing in their areas, with the associated impacts on traffic, noise, community character and more. Two other sites known as the Meyer and Cannon properties were also the subject of much public outcry, although they were not removed.

Many attendees wore stickers that said “RR2,” apparently indicating the zoning code for rural areas located adjacent to developed land that allows for limited development. A high-density housing plan would permit development on particular sites of 25 to 30 units per acre. Some speakers voiced their support for providing affordable housing to residents, such as the advocacy group Keys4Homes who wants to see at least 80 affordable units built in the city by 2020.

Deputy Mayor Joe Mosca said that the council could make the argument in court that Encinitas is following state law with at least a 20-percent buffer over the required number of remaining affordable units to be built. He found the state housing agency’s insistence on at least 1,600 units, which is far greater than 20 percent, an overstep of its authority. Whether Housing and Community Development or the court will agree will be determined in time.

Early in the meeting, attorney Eric Phillips of Goldfarb and Lipman explained how any Housing Element revisions would be subject to re-review by Housing and Community Development noting, “There’s a narrow needle we need to thread.” Phillips explained how continued noncompliance could result in the court or the state taking over Encinitas’ land use and zoning. He also clarified that were the city to lose its lawsuits, it would have to pay for the other side’s legal fees on top of any other costs or settlements.

Blakespear expressed her desire for the city to maintain its local control and to emerge from its “penalty box.”

City Council will meet again on July 18 to firm up the plan that’s to be put before voters. That ballot measure has to be submitted to the registrar by Aug. 10. Then on Aug. 17, Encinitas will return to court for a status hearing.

Councilman Mark Muir, who voted for the motion to remove the four sites, said he would be absent at the July 18 meeting. His absence leads one to wonder if the vote on the final ballot measure could take yet another turn.

3 Comments
  1. Gary 3 months ago

    Why will Mark Muir be absent at the important July 18 Council meeting? Does he have a vacation planned?? How about representing the people of Encinitas?

    • Author
      Carey Blakely 3 months ago

      Thanks for your interest, Gary. Councilman Muir announced at the end of the meeting that he would be absent due to a vacation that he’s had planned for a year.

  2. Lorri Greene 3 months ago

    Couldn’t the date of the meeting be changed so that all Council members are there? 2 Council members are up for re-election. One of those is Mark Muir. I know Mark, and I am sure he is going on vacation, and not bailing so he doesn’t have to vote on this controversial item, but why can’t the date of the meeting could be changed to have all 5 there? Joe Mosca is also up for election. He was appointed the first time around, so his vote will also be interesting. We need Muir at that meeting, in my opinion.

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